Thursday, 17 September 2015

Whether tribal women can inherit property as per Hindu succession Act 1956?

In a landmark judgment, single bench of Rajiv Sharma J., while dealing with an important issue of inheritance of property by daughters in the tribal areas in Himachal Pradesh, held that daughters in the tribal areas in the State of Himachal Pradesh shall inherit the property in accordance with the Hindu Succession Act, 1956 and not as per customs and usages in order to prevent the women from social injustice and prevention of all forms of exploitation. The Court further stated that custom amongst Gaddi caste has not been recognized consistently by the courts and thus has not passed into law of land and the appellant in the instant case has also failed to prove that the custom prevailing in the area where the parties resided was ancient, invariable and unbroken custom and the same has not been judicially noticed by the court consistently.
According to the facts, the appellant instituted a suit for declaration against the respondents. Rasalu, who was Gaddi belonging to the Scheduled Tribe category was the father of the appellant and respondent and suit land was previously owned and possessed by him. There was a custom amongst the Gaddies that the daughters do not inherit the property of their father after his death.
The Court also observed that the women have to be advanced socially and economically to bestow upon them dignity, especially the daughters in a society, who are Hindu, cannot be left and segregated from main stream. Adding further, the Court said that “they are entitled to equal share in the property. Needless to add that gender discrimination violates Fundamental Rights”. The Court in order to reach a decision referred to a catena of cases. The Court also made it clear that the observations made in the present case only pertain to right of the daughters to inherit property under the Hindu Succession Act, 1956 and not any other privileges enjoined by the tribal in the tribal areas.
High Court Of Himanchal Pradesh
Decided on June 23,2015

BAHADURAppellant
VERSUS
BRATIYA AND ORS.Respondents


Rajiv Sharma, J. - ( 1. ) THIS Regular Second Appeal is directed against the judgment and decree dated 5.10.2002 rendered by the District Judge, Chamba Division, Chamba in Civil Appeal No. 29 of 2002. 
( 2. ) KEY facts" necessary for the adjudication of this appeal are that the appellant -plaintiff (herein after referred to as 'plaintiff' for convenience sake) instituted a suit for declaration against the respondents -defendants (hereinafter referred to as the "defendants" for convenience sake) to the effect that father of plaintiff Rasalu was Gaddi, therefore, belonged to Scheduled Tribe community. The parties were governed by custom, according to which, the daughters do not inherit the property of their father and the attestation of mutation No. 288 dated 19.2.1987 by the Assistant Collector 2nd Grade, Chamba in favour of the plaintiff and defendants in respect of the land comprising Kitas 16, Khata Khatauni No. 96/124 measuring 39 bighas and 17 biswas to the extent of 1/6th share and the land comprising Khasra Kitas 3, Khata Khatauni No. 97/125 measuring 10 bighas 18 biswas to the extent of 7/98th share and the land comprising Khasra Kitas -10 Khata Khatauni No. 98/126 measuring 12 bighas and 19 biswas to the extent of 14/378th share situated in Mohal Aghar, Pargana Panjla, Tehsil and District Chamba is illegal, null and void and subsequent attestation of mutation No. 371 dated 23.8.1994 in favour of defendant No. 1 by defendants No. 2 to 5 in the suit land is also illegal, null and void. The suit land was previously owned and possessed by Rasalu, who was Gaddi and father of the plaintiff and defendant No. 1. Rasalu being Gaddi belonged to Scheduled Tribe category and after his death, his estate including the suit land was to be inherited by the plaintiff and defendant No. 1 being sons of Rasalu. There was a custom amongst the Gaddies that the daughters do not inherit the property of their father after his death. The suit was contested by the defendants. Defendants have admitted that Rasalu was previously owner in possession of the suit land, but it is specifically denied that Rasalu was Gaddi by caste. It is denied that Rasalu was Scheduled Tribe. It is further averred that estate of Rasalu was rightly inherited by the plaintiff and defendants. The mutation has also rightly been attested. 
( 3. ) REPLICATION was filed by the plaintiffs. Issues were framed by the Senior Sub Judge Chamba on 31.7.1996. He decreed the suit on 20.2.2002 to the extent that defendants No. 1 to 5 and their deceased father Rasalu were declared to be belonging to Gaddi community, which was a scheduled Tribe, to which provisions of Hindu Succession Act, in the matter of succession were not applicable and mutation No. 288 dated 19.2.1987 qua the share of deceased Rasalu in the suit land, attested in favour of defendants No. 2 to 5 and mutation No. 371 dated 27.8.1994 attested in favour of defendant No. 1 qua the relinquishment of their shares in the suit land by defendants No. 2 to 5, was declared to be illegal, null and void. Defendants preferred an appeal before the District Judge. He allowed the same on 5.10.2002. Hence, the present appeal. It was admitted on 1.6.2004 on the following substantial questions of law: "1. Whether the Learned lower Appellate Court had jurisdiction to hold the custom to be illegal being opposed to public policy, when the same had not been challenged as such by the respondents? 2. Whether the learned Lower Appellate court has erred in placing reliance on Section 3 of the Limitation Act to come to the conclusion that the suit was barred by time? 3. Whether the learned Lower Appellate Court has erred in invoking the provisions of Section 114(g) of the Indian Evidence Act when the said provision was not at all attracted to the facts of the present case - ;
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